Brave New World or False Dawn? The Tory Agenda on Prison Reform

I haven’t checked but I’d guess that prison policy has seldom made it into a Prime Minister’s Tory party conference speech. On the face of it, David Cameron’s promise that “this is going to be a big area of social reform in the next five years” should be hugely welcomed by those of us who want to see radical improvements in the way we punish people in conflict with the law.

There’s no denying the Conservatives have come a long way since I (and Cameron as it happens) worked in the Home Office twenty years ago. When then Home Secretary Michael Howard (for whom Cameron worked as special adviser) announced in 1993 that prison works, he invited a victim of rape to address the conference. Yesterday Michael Gove was preceded by an ex offender made good and went on to say that “the best criminal justice policies are good welfare, social work and child protection policies”.

So are we about to enter a golden age of change in which offences are decriminalised, vulnerable people diverted away from the courts, greater use made of community based sentences and shorter prison terms served in genuinely rehabilitative facilities?  

Three big question marks hang over the reform policy. First of course is the strength of the political will behind it. Gove may have complained yesterday that those sent to prison spend their sentences in enforced idleness but he was quoting almost word for word what Kenneth Clarke had told the conference five years ago. Despite Coalition with a party with a track record of commitment to penal  reform , prison policy and practice was something of a disaster between 2010 and 2015. Partly this was because Clarke did not last -and there must be long odds on Gove staying the course. One wonders how widely his reforming zeal is shared- presumably not by Mrs May.

The cynic may wonder too if the PM’s apparent conversion to the cause may be in part to prepare his troops for a climb-down on votes for prisoners.  Once Cameron has taken his anti-emetic, bowed to the inevitable need to allow some prisoners at least to vote,  perhaps the party will return to a more familiar stance – particularly if by then he has  lost Gove  his “the great Conservative Reformer”.

The second problem is the money.  Gove’s laudable desire for more education and help for prisoners to address the often catastrophic life experiences which have led them into jail does not come cheap. Even training prisons for young offenders – the highest priority in a sensible system- have been pared back so that almost half of prisoners are kept in their cells all day. On the day Gove made his speech, the Prison Inspectorate was describing Aylesbury YOI as having a very poor regime that fosters inactivity and indolence. The reason? Chronic staff shortages.

With at least 25% further cuts to come, Gove will have to explain sooner or later how he will do more with less. He may have been able to conjure up a standing ovation by calling for better prisons but he’ll need to magic up some serious funds to create them. Selling off inner city jails may help but there are sequencing problems in that strategy - developers won’t take kindly to Gove’s brand of sitting tenants.    The cynic may wonder too whether Gove’s plan to give Governors greater responsibilities may be a way of sloughing off his own. Without enough staff, the most able governors will struggle to cope let alone innovate.

There is of course a way of solving the money problem which is to lock up fewer people for shorter periods.  But this is the third and biggest problem. Cameron urged us to “get away from the sterile lock-em-up or let-em-out debate, and get smart about this”. The reference may be to the "Smart on Crime" movement in the US, but there, behind the neutral sounding slogan is some pretty serious “let em out”. Indeed the Justice Department is about to release 6,000 drug offenders serving terms now considered way too harsh.

Yet sentencing reform does not seem on the agenda here at all and restrictions being introduced on cautioning fly in the face of the first smart on crime principle which is to prioritise prosecutions on the most serious cases.

It may be that the government will be able to pursue alternatives to prison for low level non- violent crimes; Cameron suggested that “where it makes sense, let’s use electronic tags to help keep us safe and help people go clean”. But let’s remember David Blunkett was heralding tags as Prisons without Bars a decade ago and they have delivered considerably less in the meantime. And diverting short term prisoners away from custody doesn't save you much in the great scheme of things.

Where the Coalition government has taken action is in trying to improve re-entry to curb repeat offences. But the results of the introduction of post release supervision for all prisoners (let alone the impact of the wholesale re-organisation of the probation service deemed necessary to fund it) are not yet known.

Lack of evidence about success may not stand in the away of a similar regime change in the prison system. Cameron’s description of prisons as “a service run by the state that all too often fails and entrenches poverty” suggests radical change may be on the way. Whether it will bring with it radical improvement must be open to doubt.

Jailed for Watching Daytime TV: the Need for Prison Reform in Africa

In a recent report on over incarceration and overcrowding, the UN Commissioner for Human Rights has argued that that custodial sentences should be imposed as measures of last resort and applied proportionately to meet a pressing societal need.   A recent visit to East Africa illustrated that much more needs to be done if that is to be achieved in the region.

One 22 year old Tanzanian explained that he had been sentenced for watching television during the day- his offence seemed to be one of “idleness”.  Although his punishment was community service, this had only been imposed after he’d spent four days in prison. Throughout Africa prison appears regularly used to punish these kind of colonial era offences or for failures to comply with contemporary government regulations whether about conducting business, (such as operating a club without a licence) or obtaining fuel (such as making charcoal in the forest).

Most of the Kenyan cases we heard about involved illicit alcohol- brewing it, selling it, getting drunk on it even carrying it.  A presidential decree in July urged a crackdown on so called secondary alcohol and this is being vigorously enforced by local administrators. The country has a serious problem with drinks known as Changaa or Mugacho which, when adulterated have led to deaths by poisoning, blindness and what was described to us as a failure by men to carry out their husbandly duties.  But some at least of the drinks play a role in traditional customs at weddings, parties and other gatherings.  

Evidence outside a Kenyan Court

More than a third of the 300 women (and their 50 babies) we saw in Meru prison had been committed for a failure to pay large fines imposed for alcohol related offences of one sort or another.  While many are likely to see their sentences commuted to community service through a High Court “Decongestion Programme”, using criminal justice to crack down on the problem has created additional hardships on those who make their living by producing it and put considerable pressure on an already overstretched prison system. 

That system still suffers from the persistent problem of excessive pre- trial detention; almost 800 of the 1200 men locked up at Meru were awaiting trial. Some were charged with serious and non bailable crimes but more than half, according to the Superintendent, were facing charges for petty offences. One barrier to their release is that magistrates worry about being thought corrupt if they free a defendant. Another is that, if they do so, the police are unwilling to pursue him should he flee. The result is unaffordable bail and routine remands in custody, sometimes for longer than any likely sentence.

Some defendants choose to bear the miserable conditions rather than change their plea, either through determination to maintain their innocence, fear of mob justice in the community or to benefit from the limited food and shelter unavailable to them outside. Judicial reform and performance management initiatives in both Kenya and Tanzania look so far to have failed to tackle some of the underlying dysfunction in the countries’ criminal justice processes. Indeed it may have made things worse. One magistrate told us his target of completing 250 cases a year provided a disincentive to adjourn cases for a report on an offender’s suitability for an alternative sanction.         

There look to be some relatively easy prison reform wins; Kenya has no remission or parole, and Tanzania does not even subtract time spent on remand from the length of prison sentences.  Taking action on these are the kind of steps the UN Commissioner wants states to take to prison  overcrowding so that they "comply with their international obligations, and  guarantee detainees the dignity inherent to every human being"

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Defining Decency Down

There were wry smiles among staff at the headquarters of the National Offender Management Service (NOMS) last week. Apparently bailiffs turned up in Reception in pursuit of an unpaid debt. It took a senior legal adviser a couple  of hours to get them off the premises but at least the  furniture still seemed to be in place in the bit I visited anyway.

It doesn’t get much starker as an illustration of the financial pressures facing the Ministry of Justice but it wasn’t the only one to surface in the last few days. A far more serious example lies in Nick Hardwick’s inspectorate report into Cookham Wood, woeful  even by the standards we have sadly come to expect . High levels of violence, a backlog of disciplinary cases and worsening outcomes no longer shock as they should. All are symptoms surely of the need for greater numbers of capable staff to work with these troubled and troublesome boys in the care of the state.  The failure to provide enough well trained people is as much a sign of reckless cost cutting as are bailiffs at the door of hq.  

What did surprise was the response of the Youth Justice Board to the inspection, its Chief Executive pleased to see that inspectors had recognised the progress made at Cookham Wood  “which is especially encouraging in the light of the challenging and vulnerable cohort of young people whose needs the establishment seeks to address”. 

It’s true that the report commends certain improvements – in the reception process, safeguarding and resettlement for example. But progress? It is the deterioration in safety and in basic care which should really be worrying the YJB as the body that commissions the places at the establishment. In the inspectorate’s survey, only 14% of the boys said they had association every day and exercise in the fresh air was limited to 30 minutes a day, a breach of the best known international prison rule which requires double that. Many of the 25% of staff who were from other prisons “did not know the work, the institution or the boys.” Not long after the Inspectors visited, a boy died in Cookham Wood.  The YJB’s response to the findings looks like a case of “praising with faint condemnation”.

As Hardwick hints, all this is yet more evidence, if it were needed, that prison is no place for this age group. Yet if there is to be fundamental change, there is a need to be outraged by what is happening in places like Cookham Wood. The YJB , MoJ and NOMS are in danger of turning a blind eye to the impact of the budget cuts they oversee.  Given the state to which the youth custody sector has been reduced, looking to it to help the YJB find fresh savings imposed on it by the MoJ seems a poor call.

In one of his well- received pre-recess speeches Michael Gove  warned , in his philosophical way, that reforms to the criminal justice system should not be achieved by “defining deviancy down”- a phrase coined by Daniel Moynihan in the 1970’s to decry a permissive tendency to normalise what was once offensive. Whether or not he’s right on that, he certainly should not be defining decency down and accepting what is happening in prisons for young people. He should not be reviewing them- he should be planning to shut them. 

PS from America

The final leg of my Justice Reinvestment (JR) study tour took me to North Carolina where the Department of Public Safety provided a valuable insight into how their 2011 JR Act has brought down prison numbers and taken small but important steps to rebalance corrections away from incarceration and towards community based sanctions. There will be more of that in the report I’m preparing for Transform Justice who have commissioned the follow up to the paper I produced last year. I was struck today however by what has not changed and how in some respects at least the philosophical underpinnings of the American approach contrast so starkly with our own.

There is rightly growing concern in England and Wales about the criminal court charge and how it places a simply unaffordable burden on poor defendants and incentivises them to enter a guilty plea. When I mentioned it, American colleagues couldn't see what the fuss was about. 

In North Carolina, defendants are expected to pay not only a court cost ($180) but fees for time they spend in jail before trial- anything between $10 and $40 a day. If they have been represented by a public defender, they must reimburse the state for the attorney’s costs - $60 for an hours work in court, nearer $1000 if the case goes to trial.

But this is just the start. If they get Probation, offenders are expected to pay a supervision fee of $40 a month. If their sentence involves community service they pay a $250 fee while house arrest will set them back a one off bill of $90 plus $4.37 per day. CAM – Continuous Alcohol Monitoring in the form of a sobriety tag -runs closer to $15 per day- unsurprisingly it’s seldom used. Fees for courses required of those who drive while intoxicated are set by the providers at roughly $300-400 for 20 hours.

As in England and Wales, offenders may be fined (fines help to pay for the public schools system) while restitution is commonly ordered too- whatever it takes “to make the victim whole”. This will be the reimbursement of the value of stolen or damaged property and medical and counselling costs in cases of personal harm. This can run into hundreds or thousands of dollars.

Failure to pay these sums represents a violation of probation. Offenders cannot complete their orders until their account is clear. Not surprisingly, I heard that many low risk offenders who otherwise fully comply with probation reach the end of their orders in arrears. This is in spite of help they receive with budgeting and scheduling payments. Fortunately, judges seem to show some sense, prioritising restitution and suspending or writing off the other debts where failing to pay is not “wilful” and where efforts have been made to pay at least something.  But owing money to the justice system is surely an unnecessary block to rehabilitation. Up to half of people on probation have no driving license- it has often  been forfeited and they simply cannot afford  to clear the many debts they need to in order to get it back. In a country with very limited public transport, this is a huge disadvantage.

There is, I suppose, an argument for this approach- offenders have to be accountable and should literally pay for the consequences of their actions. It’s not the balance of responsibilities allocated between individual and the state that we are used to in the UK or indeed in Europe.  But it could well prove attractive to a conservative mindset which looks to roll back further the frontiers of state, shift costs from government to the citizen  and emphasise individual accountability irrespective of  social circumstances. I hope it's not an approach that Mr Gove finds attractive when he visits the US later this month..

Another Letter from America

I spent Friday in the delightful city of Annapolis observing a session of the Maryland Justice Reinvestment Coordinating Council. The sleepy colonial era state capital might be a slightly incongruous setting for discussions about improving the justice system’s response to crimes and misdemeanours on the mean streets of cities like Baltimore but there was no doubting the energy with which the Commission engaged  and interrogated a comprehensive presentation about its current performance.

A technical assistance team funded as part of the Federal Justice Reinvestment initiative (JRI) bombarded the meeting with data on trends in incarceration and recidivism and how well current practices across the state and its 24 counties comply with evidence about what works to reduce offending by adults.  The meeting was one of a series designed to enable the State to reform its law, policy and practice to obtain greater public safety, better value for money and less unnecessary use of imprisonment.

Two things stood out about the meeting. First is the range of participants. Representatives from all three branches of government took part – legislators from both parties and both houses, judges, prosecutors and public defenders  and a variety of executive agencies including police and corrections from state and county level. Such a wide ranging presence is not an accident. It is a requirement if States want to join the JRI and benefit from the federal support in diagnosing problems and proposing solutions.

Second, the type of reforms which the Council will consider are equally wide ranging. Three sub groups have been established to look at possible changes to sentencing, to release and re-entry arrangements and to the type of supervision available in the community.  They will work speedily to ensure proposals are on the table by year end. If Maryland follows the other 27 states who have worked on Justice Reinvestment, legislation will follow soon after. The reform measures introduced in these states have included, repeals of mandatory minimums and reductions in the going rate for certain crimes; increases in the ability of prisoners to earn early release and more generous parole eligibility and improvements. Resources freed up by the resulting reductions in prison numbers have funded more and better education and treatment programmes both in prison and the community.

A forthcoming report for Transform Justice will look at what might be learned from this approach in England and Wales. Many of the specific reforms made in US States are of course first attempts to start to unwind the catastrophic growth of incarceration seen over the last thirty years, an increase which makes our own prison population  increase over that period look extremely modest. But some of the principles of JR may well have a good deal of relevance.

Michael Gove’s announcement on Friday of a review of youth justice suggests for example that quite a lot might be learned about how best to go about introducing  reform in the justice field.. It is scarcely credible that the review he has ordered will not consider the age of criminal responsibility, the way young people are dealt with in the criminal courts or the youth sentencing framework.  Quite apart from the fact that the UK is in clear breach of international law by prosecuting children as young as ten in England and Wales, it is hard to see how a meaningful assessment can be made of how youth justice agencies are performing without considering the legal framework within which they are operating and the effectiveness of the sentences imposed on young people.

The whole thing may simply be a fig leaf to complete the unfinished business of abolishing the Youth Justice Board. But youth, and come to that adult, justice needs something much more comprehensive in scope along the lines of the exercises being conducted in respect of adult offenders across the US. 

Letter from America

I’m in the US this week researching developments in criminal justice reform. It’s part of a project to update the report I prepared last year on Justice Reinvestment for Transform Justice. A few minutes into my first meeting, my interviewee looked down at his phone and told me he’d that minute received a text from the British Embassy inviting him to meet Justice Secretary Michael Gove when he’s in Washington DC later this month. I had to explain I had not been sent ahead as some sort of scout.

But the coincidence is perhaps not surprising. The election of a new Conservative government with savings to find in criminal justice and an interest in localism and devolution does provide a timely  opportunity to see whether the range of reforms undertaken in the name of Justice Reinvestment in more than 20 states - plus important changes at the Federal level -offer lessons for England and Wales.What might Gove learn about developments over here?

On the evidence of day one, most significant perhaps has been the changing conservative mind set on crime and punishment. At an American Enterprise Institute seminar this afternoon, Republican Congressman Jim Sensenbrenner described federal prison policy as “financially unsustainable and morally irresponsible”. He argued not only that continuous increases to the list of federal offences did the nation no service but that mass incarceration has torn families apart. As a former Chair of the Judiciary Committee who oversaw much of the federal prison expansion in the 1990’s, his conversion to the cause of reform has taken many by surprise.

As with better known advocates  of Right on Crime such as former Republican speaker Newt Gingrich  a combination of budget pressures, ideological preference for a smaller state and a belief in redemption have created a paradigm shift. The fact that the public have shown themselves more interested in effectively  reducing recidivism than in ensuring lengthy sentences are  served in full has meant that arguing for reform in this area no longer carries the electoral costs it once did. Californian voters have for example ensured that a third offence must be serious and violent to qualify for a mandatory minimum and that  stolen property must  be worth more than $950 for a theft to count as a felony. Small steps but probably unthinkable a decade ago.

Whether the public would go as far as David Kennedy who told the AEI meeting that overuse of incarceration actually leads to more crime- both by limiting life chances of offenders and weakening informal social controls in the community- is another matter. But there seems widespread support for his contention that improved legitimacy of  police and other criminal justice agencies and more effective communication to offenders of the punishments that they’ll face, could bring crime down further.

Indeed it is the bipartisan nature of the criminal justice reforms that is striking. Adam Gelb from the Pew Trusts told the AEI seminar that votes for reform packages in states around the country have received support from 6000 legislators and opposition from just 500.  This reflects no doubt the horse trading that has taken place before votes are taken.  Some agencies- prosecutors in particular – seem to have been nervous in some states. It’s not clear whether this is due to outdated knowledge about the most effective use of prison or political self- interest- they face the electorate in most states.

Other officials and unions might become more agitated if more aggressive reforms lead to prisons closing or more serious or violent offenders facing shorter sentences. Yet these are the measures which will be needed if serious inroads are to be made into US prison populations and substantial funds freed up for social programmes. In truth the reforms introduced so far have only touched the edge of what is compared to Western Europe still a draconian system.

Gove will find out that the momentum of those reforms has been slowed by reports of spikes in violent crimes in particular cities and by particularly horrific cases such as a San Francisco murder committed by an illegal immigrant.  If America’s twenty year crime decline goes into reverse, arguments for reform will be harder to make.   Whether these turn out to be bumps in the road or the end of the road remain to be seen.

For God's Sake George, Take a Look at Criminal Justice Policy

Earlier this week the Ministry of Justice greeted the latest criminal justice statistics by celebrating record levels of prison sentences given to sex offenders in 2014. Their press release not only welcomed the harsher punishments given to the 6000 of these offenders sentenced last year. The Government seemed keen to publicise the fact that prison sentences for all offenders have been getting longer and that the proportion of serious offences given a community sentence has declined. They see as positive too the fall in the use of so-called out of court disposals- police cautions and warnings usually given for petty offences.

The consequences of the last of these trends is being shown daily in the Howard League’s excellent campaign to end the criminal courts charge. Not only are the Howard League highlighting the injustice and absurdity of imposing additional financial penalties on defendants whose criminality is born of poverty and desperation but raising the question on why on earth some of these petty offences are being brought to court at all. Just as most of the public came to see it as crazy to ban prisoners from receiving books through the post, so surely will a majority eventually accept that thefts of small amounts of food, begging,or drunkenness cry out for a problem solving response rather than a punitive one.

The use of courts for these kind of misdemeanours seems part of a broader pattern of criminalisation. The criminal statistics reveal an increase in the numbers of summary offences – the least serious- being prosecuted and sentenced. This is apparently due mainly to an increase in speed limit, vehicle insurance and TV licence offences. Other non-motoring summary offences that continued to rise during the year and the last decade include littering and truancy.

Separately this week we learned more details of the 16,000 parents prosecuted for failing to secure their children’s attendance at school, 18 of whom (ten mothers) ended up in prison. This week also saw an expensive Old Bailey trial resulting in a couple fined £1000 for outraging public decency; the judge blamed the defendants for maintaining their innocence but could easily have criticised the CPS for continuing a prosecution which while of significant interest to the public was hardly in the public interest.

In a time of stretched resources, it is odd to say the least that more and more cases are being brought before the courts unnecessarily.  A rational approach would surely see everything being done to deal with cases at the lowest and cheapest level in the system. This is what is happening in the health system where GP’s are being incentivised to reduce pressure on hospital admissions. Its what happens in the criminal justice systems of many European countries where prosecutors can settle many more cases than happens here. 

The one area in criminal justice where a sensible use of diversion  has been happening is in respect of young offenders. Figures out today show continuing reductions in the numbers of under 18’s in custody. In large part that’s because cases are diverted wherever possible by the police, and where cases go to court a wide range of alternatives are proposed to the courts and a large proportion imposed. This is precisely what’s needed for defendants of all ages.

Last week civil servants were asked to meet a public sector efficiency challenge by proposing ideas for improving public services or save money. Categories of reform include reducing bureaucracy, improving customer services, staffing and making services work more effectively together. Keeping cases out of the court system as far as possible would meet all of these objectives and more.

The Chancellor's initiative asks respondents not to “use any profanity or abuse in your responses as it will automatically disqualify your idea”.  But for God’s sake, George  have a look at criminal justice and penal policy.